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EXHIBIT 99.2
________________________________________________________________________________
AMENDED AND RESTATED
ESCROW AGREEMENT
by and among
U.S. CAN CORPORATION,
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Escrow Agent
Dated as of October 17, 1996
________________________________________________________________________________
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ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT (this "Agreement"),
dated as of October 17, 1996, is by and among U.S. CAN CORPORATION (the
"Company"), XXXXXX TRUST AND SAVINGS BANK, as trustee under the Indenture
referred to below (the "Trustee"), and THE FIRST NATIONAL BANK OF CHICAGO, as
escrow agent (the "Escrow Agent").
RECITALS
A. Amendment and Restatement. Each of the parties hereto has
previously entered into that certain Escrow Agreement, dated as of October 17,
1996 (the "Escrow Agreement"), and each of such parties desires to amend such
Escrow Agreement and, pursuant thereto, to restate the Escrow Agreement in its
entirety as set forth in this Agreement (such restatement to be effective as of
the date of the Escrow Agreement).
A. The Securities. Pursuant to that certain Indenture (the
"Indenture") dated as of October 17, 1996 by and between the Company, the
Trustee and United States Can Company, a wholly owned Subsidiary of the
Company, as Guarantor, the Company will issue $275,000,000 in aggregate
principal amount of 10-1/8% Senior Subordinated Notes due 2006 (the
"Securities"). Simultaneously with receipt of payment for the Securities (the
"Deposit Time"), $109,732,095 (or such other amount as is sufficient to effect
the Required Redemption) received as proceeds by the Company from the sale of
the Securities (the "Escrow Funds") will be deposited into a segregated cash
account with the Escrow Agent at its office at 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx XX 00000, Account No. 22-203607, in the name of United States Can
Company 13 1/2% Senior Subordinated Notes Redemption Escrow Account (the
"Escrow Account"). The Escrow Account and all balances and investments from
time to time therein shall be under the dominion and control of the Trustee and
the Escrow Agent. The Escrow Funds will be invested as directed by the Company
or an agent appointed by the Company subject to the provisions of this
Agreement. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Indenture.
B. The Required Redemption. Pursuant to the Indenture, the
Company has covenanted and agreed that it will set aside the Escrow Funds and
use such funds to redeem (including the payment of interest accrued or payable
from the date hereof through the date of redemption, the "Required Redemption")
the Company's 13 1/2% Senior Subordinated Notes due 2002 (the "13 1/2% Notes")
by January 22, 1997, pursuant to the terms of the indenture under which the 13
1/2% Notes were issued.
C. Purpose. The parties hereto desire to set forth their
agreement with regard to the administration of the Escrow Account and the
conditions upon which funds will be released from the Escrow Account.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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1. Maintenance of the Escrow Account. So long as this Agreement is
in full force and effect:
1.1 the Company shall establish and maintain the Escrow
Account with the Escrow Agent in Chicago, Illinois, and the Escrow Account
shall at all times remain under the dominion and control of the Trustee and the
Escrow Agent; and
1.2 it shall be a term and condition of the Escrow Account,
notwithstanding any term or condition to the contrary in any other agreement
relating to the Escrow Account and except as otherwise provided by the
provisions of Article 3 of this Agreement, that no amount (including, without
limitation, interest on or other proceeds of the Escrow Account or on any
Temporary Cash Investments held therein) shall be paid or released to or for
the account of, or withdrawn by or for the account of, the Company or any other
person or entity other than the Trustee or its designated agent from the Escrow
Account (other than customary brokerage or similar fees, discounts or
commissions payable in connection with investments of funds pursuant to Section
2.1 hereof).
2. Investment and Liquidation of Funds in Escrow Account. Funds
deposited in the Escrow Account shall be invested and reinvested by the Escrow
Agent on the following terms and conditions:
2.1 Allowable Investments. Subject to the provisions of
Articles 2 and 3, funds held by the Escrow Agent in the Escrow Account may, at
the direction of the Company or an agent appointed by the Company, be invested
and reinvested in the following ("Temporary Cash Investments"):
(i) investments in U.S. Government Obligations with maturities
no later than January 15, 1997 maturing within 90 days of the
date of acquisition thereof, (ii) investments in time deposit
accounts, certificates of deposit and money market deposits
with maturities no later than January 15, 1997, issued by a
bank or trust company which is organized under the laws of the
United States of America or any state thereof having capital,
surplus and undivided profits aggregating in excess of
$500,000,000 and whose long-term debt is rated "A-3" or A- or
higher according to Xxxxx'x Investors Service, Inc. or
Standard & Poor's Corporation (or such similar equivalent
rating by at least one "nationally recognized statistical
rating organization" (as defined in Rule 436 under the
Securities Act)), (iii) repurchase obligations with a term of
not more than 7 days for underlying securities of the types
described in clause (i) above entered into with a bank meeting
the qualifications described in clause (ii) above, and (iv)
investments in commercial paper, with maturities no later than
January 15, 1997, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the
laws of the United States of America with a rating at the time
as of which any investment therein is made of "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or "A-1"
(or higher) according to Standard & Poor's Corporation.
Investment instructions may instruct the Escrow Agent to
purchase or sell specific securities to or from specific persons and/or on
specific terms negotiated by the Company or its agent. If the Company or such
agent fails to give investment instructions to the Escrow Agent by 12:00 noon
(Chicago time) on any Business Day on which there is
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uninvested cash and/or maturing Temporary Cash Investments in the Escrow
Account, the Trustee is hereby authorized and directed to direct the Escrow
Agent to invest any such cash or the proceeds of any maturing Temporary Cash
Investments in Temporary Cash Investments maturing on the next Business Day.
The Company's or such agent's failure to give such investment instructions
shall not constitute a default or an event of default hereunder.
All of the Temporary Cash Investments shall mature on or prior
to January 15, 1997; provided, however, that if the Trustee receives from the
Company a certificate substantially in the form of Exhibit A hereto (a
"Preliminary Release Certificate") that: (x) sets forth the date (the "Closing
Date") set for the Required Redemption, which shall not be earlier than five
(5) Business Days after receipt of such Preliminary Release Certificate; (y)
states that the Company reasonably believes that the Required Redemption will
be consummated on the specified Closing Date; and (z) directs the liquidation
of all of the Temporary Cash Investments in accordance with Section 3.2, the
Trustee shall direct the Escrow Agent to only invest in Temporary Cash
Investments such that the funds held in the Escrow Account will be available
for release no later than 12:00 noon (Chicago time) on the Closing Date.
2.2 Interest. All interest earned on funds invested in
Temporary Cash Investments shall be held in the Escrow Account and reinvested
in accordance with the terms hereof and will be subject to the security
interest granted hereunder to the Trustee.
2.3 Limitation of Trustee's and Escrow Agent's Liability. In
no event shall the Trustee or the Escrow Agent have any liability to the
Company or any other person for investing the funds from time to time in the
Escrow Account in accordance with the provisions of this Article 2, regardless
of whether greater income or a higher yield could have been obtained had the
Escrow Agent invested such funds in different Temporary Cash Investments, or
for any loss associated with the sale or liquidation of Temporary Cash
Investments in accordance with the terms of this Agreement.
3. Disposition of Escrow Funds Upon Certain Events
3.1 Use of Escrow Funds. Other than pursuant to Section 3.6
and the Temporary Cash Investments, the funds invested in the Escrow Account
shall, as provided in Section 3.3 and following, irrevocably be used for the
Required Redemption.
3.2 Transfer of Escrow Proceeds for the Required Redemption.
When, on or prior to January 7, 1997, the Company delivers to the Trustee a
Preliminary Release Certificate stating that the Required Redemption will
occur, the Trustee shall direct the Escrow Agent to: (a) liquidate, within five
(5) Business Days after the Trustee's receipt of such Preliminary Release
Certificate, all of the Temporary Cash Investments in the Escrow Account and,
(b) transfer, on the Closing Date, such amount of funds as specified pursuant
to Section 3.3 sufficient to complete the Required Redemption (including the
payment of any interest accrued and/or payable with respect to the 13 1/2%
Notes), and the Escrow Agent hereby agrees to liquidate such amount of
Temporary Cash Investments and to make such funds transfer, subject to Section
3.3.
3.3 Release of Funds. On the Closing Date, the Company shall
deliver to the Trustee (x) confirmation of the amounts required to be
transferred by the Escrow Agent
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pursuant to Section 3.2 (including any amounts with respect to interest accrued
and/or payable with respect to the 13 1/2% Notes), (y) an opinion of Xxxx &
Xxxxxxx, counsel to the Company in the form of Exhibit B hereto, to the effect
that the Required Redemption complies with all of the conditions in the
Indenture and the terms of the indenture governing the 13 1/2% Notes, and that
the Company has duly authorized, executed and delivered the confirmation
identified in clause (x) and the Release Certificate (as defined below), and
(z) a certificate substantially in the form of Exhibit C hereto (a "Release
Certificate") stating that (1) all conditions to the Required Redemption have
been satisfied or waived, (2) that the Required Redemption will be consummated
on such date on substantially the terms described in the Indenture and (3) that
no Event of Default (as defined in the Indenture) has occurred and is
continuing or will occur as a result of the release of funds contemplated
hereby, and instructing the Trustee to direct the Escrow Agent to release the
appropriate dollar amount of the Escrow Funds in accordance with this Section
3.3. Upon receipt of the foregoing and in good faith reliance thereon, the
Trustee shall direct the Escrow Agent to transfer the amount specified by the
applicable terms of such Release Certificate in immediately available funds in
accordance with the terms of such Release Certificate. The delivery of the
items identified in clauses (x), (y) and (z) shall be the only conditions
precedent to the release of funds pursuant to this Agreement.
3.4 Payment of Interest on 13 1/2% Notes. If the Closing
Date set forth in the Preliminary Release Certificate is not January 15, 1997,
(i) the Company shall include in such Preliminary Release Certificate the
amount of the interest payment required to be made in respect of the 13 1/2%
Notes on January 15,1997 and (ii) the Trustee shall direct the Escrow Agent to
transfer, on January 15, 1997, such amount of funds to the account specified by
the Company in such Preliminary Release Certificate in order to make the
required interest payment with respect to the 13 1/2% Notes, and the Escrow
Agent hereby agrees to liquidate such amount of Temporary Cash Investments and
to make such funds transfer.
3.5 Release of Remaining Funds in Escrow Account. Upon such
date as the Escrow Funds have been released in accordance with Sections 3.2 and
3.3 hereof and upon receipt of a request by the Company, the Escrow Agent shall
transfer by wire transfer of immediately available funds any funds remaining in
the Escrow Account to an account designated by the Company.
3.6 Funds Continuously Held. In the event that the Escrow
Funds are not released pursuant to Sections 3.2, 3.3 and 3.4, the Escrow Funds
shall be continuously held as provided herein until receipt by the Escrow Agent
of a final order of a court of competent jurisdiction directing Escrow Agent to
withdraw the Escrow Funds.
4. Representations and Warranties. The Company hereby makes all
representations and warranties applicable to the Company contained in the
Indenture. The Company further represents and warrants that:
4.1 The execution, delivery and performance by the Company of
this Agreement are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or bylaws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Company, or result in the creation or imposition of any Lien on any assets of
the Company.
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4.2 This Agreement has been duly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
4.3 No litigation, investigation or proceeding of or before
any arbitrator or governmental authority is pending or, to the best knowledge
of the Company, threatened by or against the Company or against any of its
properties or revenues with respect to this Agreement or any of the
transactions contemplated hereby.
5. Indemnity. The Company shall indemnify and hold harmless the
Trustee, the Escrow Agent and their respective directors, officers, agents and
employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including, without limitation, defense costs,
investigative fees and costs, legal fees and claims for damages incurred in any
action or proceeding between the parties hereto or in disputes with third
parties or otherwise, arising from or in connection with the Trustee's and/or
the Escrow Agent's acceptance of, or performance under, this Agreement, except
to the extent that such liability, expense or claim is directly attributable to
the gross negligence or bad faith of the Trustee or the Escrow Agent.
6. Termination. This Agreement shall terminate automatically upon the
release of all of the Escrow Funds pursuant to Sections 3.2, 3.3, 3.4 and 3.5
hereof.
7. Miscellaneous.
7.1 Waiver. Any party hereto may specifically waive any
breach of this Agreement by any other party, but no such waiver shall be deemed
to have been given unless such waiver is in writing, signed by the waiving
party, and specifically designates the breach waived, nor shall any such waiver
constitute a continuing waiver of similar or other breaches.
7.2 Invalidity. If, for any reason whatsoever, any one or
more of the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid in a particular case or in all cases,
such circumstances shall not have the effect of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid, and the
inoperative, unenforceable or invalid provision shall be construed as if it
were written so as to effectuate, to the maximum extent possible, the parties'
intent.
7.3 Assignment. This Agreement shall inure to and be binding
upon the parties and their respective successors and permitted assigns;
provided, however, that the Company may not assign its rights or obligations
hereunder without the express prior written consent of the Trustee.
7.4 Choice of Law. The existence, validity, construction,
operation and effect of any and all terms and provisions of this Agreement
shall be determined in accordance with and governed by the internal laws of the
State of New York including, without limitation, the Uniform Commercial Code in
effect in the State of New York, without giving effect to the conflicts of law
principles of such State.
7.5 Entire Agreement; Amendments. This Agreement and the
Indenture contain the entire agreement among the parties with respect to the
subject matter hereof and
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supersede any and all prior agreements, understandings and commitments with
respect thereto, whether oral or written; provided, however, that this
Agreement is executed and accepted by the Trustee subject to all terms and
conditions of its acceptance of the trust under the Indenture, as fully as if
said terms and conditions were set forth at length herein. This Agreement may
be amended only by a writing signed by duly authorized representatives of all
parties. The Trustee and the Escrow Agent may not execute any amendment to
this Agreement that would adversely affect the rights of the holders of the
Securities.
7.6 Notices. All notices, requests, instructions, orders and
other communications required or permitted to be given or made under this
Agreement to any party hereto shall be delivered in writing by hand delivery or
overnight delivery, or shall be delivered by facsimile or telephonically with
confirmation in writing not more than twenty-four hours following such
facsimile or telephonic notice. A notice given in accordance with the
preceding sentence shall be deemed to have been duly given upon the sending
thereof, except for notice to the Trustee or the Escrow Agent, which shall be
deemed given only when received. Notices should be addressed as follows:
To the Company:
U.S. Can Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Secretary
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
With copies to:
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
and
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
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To the Trustee:
Xxxxxx Trust and Savings Bank
Attention: Indenture Trust Administration
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
To the Escrow Agent:
The First National Bank of Chicago
Attention: Corporate Trust Administration/
Escrow Unit
U.S. Mail Delivery:
0 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Courier Delivery:
0 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
or at such other address, facsimile number or phone number as the specified
entity most recently may have designated in writing in accordance with this
paragraph to the other parties.
7.7 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day first written above.
COMPANY: U.S. CAN CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President,
Finance, Chief Financial
Officer and Secretary
TRUSTEE: XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
ESCROW AGENT: THE FIRST NATIONAL BANK OF CHICAGO,
as Escrow Agent
By /s/ X.X. Xxxxxx
---------------------------------
Name: X.X. Xxxxxx
Title: Assistant Vice President
[Escrow Agreement]
